Archive for the ‘Family Law’ Category

Solemnisation Of Statutory Marriages in Nigeria

August 22, 2017

The Nigerian Marriage Act, cap 218, Laws of the Federation 1990 lays down the requirements for the solemnization of marriage under the statute.

Before the celebration of the marriage,  parties shall sign and give to the Registrar of the district in which the marriage is intended to take place, a notice in the prescribed form known as Form A in which they will fill their personal details including Name, Age, Address, Occupation, Marital status, Consent (minor under 21 years), Signature etc. The Registrar shall then cause the notice to be entered in the Marriage Notice Book in his registry. A copy of this will be displayed in the registry for inspection by the public for 21 days.

Any person whose consent to a marriage is required or who may know of any just cause why the marriage should not take place, may enter a caveat against the issue of the Registrar’s certificate by writing at any time before the issue of the Registrar’s certificate the word ‘Forbidden’ opposite the entry of the notice in the marriage notice book and include his name, place of abode and the grounds upon which he claims to forbid the issue of the certificate. The Registrar shall not issue the certificate until such caveat has been pursued and disposed of.

Caveat’s to Notice of Intention to Marriage

 

Age
Written consent of either the parents or guardians is required for persons under the age of twenty one years unless one of the party is a widow or widower. The Act further provides in section 49 that whoever shall marry or assist any person to marry a minor under the age of twenty one years, not being a widow or widower, shall be liable to imprisonment for two years.

S.48 – Whoever, knowing that the written consent required by this Act has not been obtained, shall marry or assist or procure any other person to marry a minor under the age of twenty-one years, not being a widow or widower, shall be liable to imprisonment for two years.

Subsisting Marriage
Parties must be single at the time of marriage. If either if the parties is already married under the Act or under customary law to another person and the marriage has not been dissolved by any court of law their marriage will be invalid under section 33 (1) of the Marriage Act.

S.39 – Whoever, being unmarried, goes through the ceremony of marriage under this Act with a person whom he or she knows to be married to another person, shall be liable to imprisonment for five years.

S. 46 – Whoever contracts a marriage under the provisions of this Act, or any modification or re-enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years.

 

Kindred and AffinityA marriage between two persons who are within the prohibited degree of consanguinity or affinity is void. Under section 4 of the MCA, where persons are within the prohibited degrees of affinity and desire to marry, they may apply in writing to a Judge for permission to do so and if the Judge is satisfied that there are exceptional circumstances, the Judge may by an order permit the parties to marry one another.

The prohibited degrees of consanguinity and affinity under the Matrimnial Causes Act are as follows:
Marriage of a man is prohibited if the woman is, or has been his:
1. Ancestress 1. Wife’s mother
2. Descendant 2. Wife’s grandmother
3. Sister 3. Wife’s daughter
4. Father’s sister 4. Wife’s son’s daughter
5. Mother’s sister 5. Wife’s daughter’s daughter
6. Brother’s sister 6. Father’s wife
7. Sister’s daughter 7. Grandfather’s wife
8. Son’s wife
9. Son’s son’s wife
10. Daughter’s son’s wife

Marriage of a woman is prohibited if the man is, or has been her:
1. Ancestress 1. Husband’s father
2. Descendant 2. Husband’s grandfather
3. Father’s brother 3. Husband’s son’s son
4. Mother’s brother 4. Husband’s daughter’s son
5. Brother’s son 5. Mother’s husband
6. Sister’s son 6. Grandmother’s husband
7. Son’s daughter’s husband
8. Daughter’s daughter’s husband

After the period of 21 days, the Registrar shall issue a Form C certifying the criteria has been met and satisfied and that there is no cause why the parties should not be married and grant a license, known as Form D, authorizing the celebration of a marriage between the parties named in such license.

Upon receipt of the Registrar’s certificate, the parties can celebrate their marriage. The marriage can take place in a in a church duly licensed for the celebration of statutory marriages or the marriage registry usually within three months from the date the notice was placed with the registry. All States have marriage Registries at the State and Local Government secretariats.

During marriage proceedings in a registered church, the officiating minister fills in duplicate a marriage certificate printed for the purpose by the Registrar with particulars as required by Form E, and enter in counterfoil the number of the certificate, the date of the marriage, names of the parties, and the names of the witnesses.

The certificate is signed in duplicate by the officiating minister, by the parties, and by two or more witnesses to the marriage. The minister having also signed his name to the counterfoil will deliver one certificate to the parties, and within seven days thereafter file the same with the registry. The Registrar will register the marriage in a book called the Marriage Register Book and file the certificate in his office in accordance to the FORM F.

Not every church is a licensed place for the celebration of marriages in accordance with the Act. Under section 33 (2) of the Marriage Act, a marriage shall be null and void if both parties knowingly and wilfully acquiesce in the celebration of a marriage in a place other than the office of a registrar of marriages or a licensed place of worship.

Section 22 of the Marriage Act forbids a minister of religion to celebrate any marriage until the parties have delivered to him the Registrar’s certificate or a special license from the governor under section 13. Section 43 imposes a maximum penalty of five years imprisonment for performing a marriage in defiance of the Act.

There have been a lot of questions and a lot of confusion about the validity of a customary marriage entered into during the subsistence of a statutory marriage. The Marriage Act 1990 provides as follows –

S.35 Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law, but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.

It goes further to provide –

S.47 Whoever, having contracted marriage under this Act, or any modification or re-enactment thereof, or under any enactment repealed by this Act, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to imprisonment for five years.

 

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A Review of Oluremi Obasanjo’s Bitter Sweet: My Life with Obasanjo (From The Archives)

June 25, 2017

December 10, 2008 at 10:25am

OLUREMI OBASANJO: PORTRAIT OF A FEMINIST POSTER GIRL?

By Lesley Gene Agams

A privileged idyllic childhood, a precocious adolescence and a striving dogged socially conscious woman. That is the sense I get of Oluremi Obasanjo from her recently released book Bitter Sweet: My Life with Obasanjo. Although she often comes across as naïve, gullible and coarse there is no masking the raw ambition and sense of achievement lurking covertly like a cunning animal.

Bitter Sweet offers a rare insight into a young girl’s life in pre independence Nigeria. Her story of going off to Lagos with only a female cousin was a surprise, as was her sneaking away from an event in Ibadan to visit her beau’s house. Even more astonishing was her un-chaperoned trip to London to meet Obasanjo before they were even married. It’s rare to hear such honest accounts about young women of that era enjoying such freedom. To hear it told by the social matrons, back in 1950 all girls were on chaperoned lock down till their bride price was paid and rings on their fingers.

Oluremi’s story also offers important insight for the Nigerian women’s movement and victim’s activists all over the world. It provides a rare viewpoint into the psyches of a high profile domestic violence victim and her equally high profile abuser. The question ‘why do victims stay?’ is one of the most contentious in academic and legal literature on violence against women globally. There is no agreement as to the dynamics but there is a growing recognition that victims cannot always exercise agency and walk away. This is a rare portrait of a narcissist, his codependent and their traumatized and troubled offspring.

Here we have the unfiltered voice of a victim and an abuser known all over the world. This isn’t the transcript of a case study interview where the interviewer asks leading questions or a counselor offers culturally biased speculation about the motives behind an anonymous patient’s experience. We have a cultural and social context that provides incredibly rich information. A number of commentators have compared it to a Nollywood script but this is not fiction. Why did Oluremi stay? Why does she still call this man her husband and ‘the only man I have known’?

Her story is significant because of who she was married to, her experience with Obasanjo is the experience of millions of Nigerian women. Thanks to her book we may be able to bring attention to their stories and begin a rational discourse on violence against women and domestic violence, two issues that have failed to enrage the Nigerian public or engage the Nigerian media. Oluremi is just one of the lucky ones. Apollonia Ukpabio endured 25 years of escalating violence till her skull was cracked open with a machete. Miraculously she survived. Her husband is on trial for the attack. Why did she stay? She believed God and church wanted her to protect and defend her marriage no matter what. Others have died.

The challenges of being married to Nigerian elites are especially made obvious in her narrative. It’s the story that does not get told, the male entitlement, the female consent and often the mutual infidelity. It’s really difficult to complain when living a really privileged life in a really poor environment. I know many a Nigerian matron that felt Princess Diana should have put up and shut up. The ‘old school’ belief is that a woman should marry for economic security not love, and if it’s companionship you crave find it with the women and/or your children. The wisdom of the matrons for a woman thinking of leaving her husband is territorial– don’t be foolish, why leave your turf for some other woman to take over? Fight for your matrimonial haven and sanctuary. Oluremi had a lot to fight for.

For me one of the more disquieting revelations of this book is how powerful and rich men are manipulated to accept and expect exploitation through their sexual extravagance. According to Oluremi, Obasanjo’s aunt became one of his ‘pimps’ and weak minded male that he was “he abandoned his Lugard quarters for five days because he didn’t want a divorcee, who was even a mother of two. Later, he gave in and the woman had a child…” I know people like that, they will never go to see a powerful man without ‘an offering’, usually a young pretty girl. The most disgusting personal encounter I recall was a middle aged couple that brought their 15 year old daughter dressed like a hooker to see a certain big man they wanted a favor from. I was there. I’ve often wondered about the ‘powerful’ men that fall for that one.

All families are dysfunctional and some may seem more dysfunctional than others but it seems too much of a coincidence that Obasanjo’s narcissistic, high risk behavior and mood swings only emerged after the civil war. Could he have been suffering from post traumatic stress disorder? This is not uncommon in soldiers, even Nigerian soldiers. I handled a divorce case a while back, the husband, an armed forces man, had just returned from an active mission and was exhibiting classic symptoms of PTSD. The administration couldn’t offer him any help. He refused to admit he had a problem, his wife did not know how to handle it, his marriage collapsed under the strain. He reacted pretty much the way Obasanjo did, contesting custody, refusing to pay child support and becoming increasingly abusive; contemporary Okonkwo figures, tormented, paranoid and insecure, things falling apart around them.

All that being said there is a lot that makes me uncomfortable about this book, it’s no master piece but its not meant to be. I found Oluremi’s total lack of self consciousness very disturbing, she seems to be saying of course I slapped that girl and of course I bit that woman and of course I made embarrassing scenes and even fought a truck full of soldiers, like it’s all normal. I found that eerie. The scene on page 66 where she attacks Mowo Sofowora, like a frenzied mother hen and then having fended off the interloper, clucks protectively around her chicks is totally dissonating and disturbing. All narrated like it’s totally normal, there is no moral debate as to the appropriateness of action. She is not the only female (or male) I know that considers her response to this sort of ‘provocation’ perfectly normal and unquestionably right. I find that frightening and sad.

Even more disturbing evidence of a venal, anachronistic world view was her calling Murtala’s ADC the day after she was informed of her child’s death and being morbidly counseled to see the incident as some sort of answer to her prayers to be back in Obasanjo’s house. Just access to this ‘big powerful man’ who happened to be the-father-of-her-children-who-he-had-custody of had become a goal. Her disappointment and resentment towards her sister in law who precipitated her hasty ouster five days later seemed to coldly over shadow her grief at losing a child. Her insecurity is overwhelming; she is willing to forgive Obasanjo the death of her child but not his sister. Her apparent devotion to him despite everything borders on an obsession. Is she a cold ruthless woman or the traumatized victim of a narcissist?

Then there was the bizarre description of their courtship, she presents herself as a passive and entitled recipient of Obasanjo’s courting. He wrote her letters, sent her books and gifts and eventually she said yes. Surely that’s not the whole story. What exactly did the shoeless son of a village drunk say to the spoilt railway master’s precocious daughter that convinced her that Obasanjo was worth waiting seven years for? It’s obvious he was a man on the fast track to power but Oluremi’s narrative while indicating that does not provide any insight into the motivation for any of his actions. Why did he want to study geology? Why did he change his mind for a military career? Is she absolving herself of all responsibility or did she really not know? Or is she just not telling? Loyal to the bitter end?

Whatever her motives for staying or for telling her story now Oluremi did not deserve the treatment she received from her husband. No man or woman deserves abuse and violence, and all women deserve the right to say to the man they married ‘I can’t live with you anymore’ and still be humanely treated with their children as Nigerian citizens protected by a constitution. We need to stop the abuse. We need to break the cycle of violence.

I have reaffirmed or learnt a number of things from reading this gripping account of lives interrupted;

1. There is an urgent need to review the Matrimonial Causes Act and extend its jurisdiction to women married under customary law; it is an archaic piece of legislation that offers little protection to women considering divorce or separation and their children. The customary law systems that the majorities of woman have access to in Nigeria are heavily biased against women and make seeking separation or divorce traumatic and humiliating.
2. We desperately need to introduce parenting skills to our education curricula. Children are often at greatest risk of long term harm and damage from their parent’s ignorance. Teaching children parenting skills is as important as teaching them to say no, zip up, life skills or whatever else we choose to call sex education. Teaching them religion is not enough.
3. The Nigerian armed forces need to increase their transition support for veterans returning from war, especially the psychological support they provide. Wars are dehumanizing and brutalizing, veterans and their family members need assistance re-integrating after prolonged exposure to the violence and brutality of armed conflict and barracks life.
4. Nigerian media need to learn how to write more sensitively about women and women’s issues. Most of media commentators including female commentators brushed aside her story and condemned her for telling it. Stark testimony to how such tragedies can play out to an inevitably sad outcome while hidden in plain view.

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Child Custody in Nigeria FAQ: Who Owns The Child? II

February 9, 2017

‘Ownership’ of children is a feature of many customary laws in Nigeria.

Customary laws vary from one tribal group to the other. In some Igbo-Nigerian communities payment of the bride price determines ‘ownership’ of children. In ‘An Anatomy of Female Power’ Chinweizu has previously argued that the payment of bride price in Nigeria does not entitle the payer to the woman but rather to the fruit of her womb and I agree with him.

Among some Igbo-Nigerian groups and in Umuaka where I come from and grew up in particular under tribal laws where a marriage is not formalised and a bride price is not paid any child a woman bears ‘belongs’ to her father’s house and enjoys full inheritance rights. Likewise, if a woman left or divorced her husband she had to repay him the bride price her paid or any children she had thereafter ‘belonged’ to him, no matter who was the biological father. However, these tribal laws have been held to be repugnant to natural justice, equity and good conscience and are not usually enforceable by the customary courts anymore. Likewise, tribal laws that deny mothers access or custody without a consideration of natural justice, equity and good conscience are repugnant. However, it takes a good knowledgable lawyer to make that argument before the court.

In Yoruba-Nigeria the practice was that a child could claim a right to inheritance so long as the father had acknowledged him during while the father was alive. Sharia law, which is classed as a customary law in the Federal republic of Nigeria, apparently privileges mothers in custody issues whether they were married or not.  Customary courts just like statutory courts have a lot of discretion and it all depends on the arguments they are presented to them.

Lagos State is the only state in Nigeria that has created a family court procedure to deal with disputes relating to guardianship, custody and adoption that is not related to matrimonial causes in its Child Rights Law 2007. So if you are in Lagos and are unmarried and have a custody matter that is the law to refer to.

Nevertheless there is still a lot of confusion regarding children that are born to parents that were never married under statutory or customary law. There is also an increase of children born to parents that are not married under statutory and customary law. There seems to be a presumption that once a father is named on a birth certificate as such it secures his ‘rights’ to the child. I figure the courts will be busy untangling those complications for a few decades to come.

I’ve heard from a lot of people that the Social Welfare Office’s, which are increasingly called upon to decide questions of custody and maintenance in cases where the parents were never married have been ruling that once a child is 7 years old the father can take custody. This is wrong and dangerous and needs to stop. The law remains clear that the best interest of the child is paramount in deciding custody and neither parent  is entitled to automatic custodial rights. Both must show that they can meet the best interest of the child and not only that the other parent cannot.

In a decided case the father when asked what arrangements he had made for the children whose custody he was seeking said they would stay with his ageing mother in the village as opposed to staying with heir mother on the university campus where she lived and worked. The judge despite his conservative leanings ruled the children live with their mother even though he could not bring himself to grant her custody.

Perhaps the confusion lies in the meaning given to the word ‘custody.’ Custody is not ownership. We’ll consider ‘custody’ in my next post. I’m already over my 500 word limit. Or guideline.

Chao

mdv102ts

 

Child Custody in Nigeria FAQ: Who Owns The Child?

February 7, 2017

First of all we really need to stop thinking in terms of ‘ownership’ of children. Children are not chattel. You do not own a child. They are little people. Dependent little people and adults are parents, guardians, care takers and providers. Not owners.

That said what people usually mean when they ask that question is who gets ‘custody’ when the parents of a child are separated, divorced or even never married. Or who the child lives with because the parent a child lives with will influence the child’s future behaviour and personality.

Both parents have an equal right to raise, influence and make decisions for their juvenile offspring. (Nwosu vs. Nwosu [2012] 8 NWLR) Where the parents are cohabiting there is no usually issue and in many households the father assumes the role of head of household and makes decisions for everyone else with or without consulting his wife, the mother. It all depends on their personal dynamics.

Custody issues arise where either party wants to leave or end the relationship between the parents of a child or children. In Nigeria most men seem to think that they ‘own’ the children and presume that they will get custody especially of male children. Then again most men seem to think they own their wife too.

Both the Matrimonial Causes Act and the Child’s Right Act are clear that issues of custody are to  be decided in the best interest of the child and the courts have held that neither parent has an automatic right to custody.

If you are in a statutory marriage (that is one registered at the Marriage Registry and issued a Federal Government Certificate) and want a divorce, judicial separation or nullification of that marriage and believe that the best interest of the children is served with you or a woman in a violent abusive marriage that stays because you won’t leave without your children here is what your lawyer needs to do;

  1. After drafting and filing our petition for judicial separation, divorce or nullification and being assigned a court BEFORE serving your spouse your lawyer should file an exparte motion (known as an interlocutory relief) for temporary custody pending the determination of the petition AND a motion on notice for temporary custody simultaneously.
  2. The court will hear the ex parte motion and make a ruling which will be served on your spouse (The Respondent) with the notice of petition and the motion on notice for the same interlocutory relief asked for in the ex parte motion. The court will set a date before the exparte ruling expires in 7 days to hear the motion on notice thus giving the respondent a chance to challenge your request to the court for custody pending the determination of the main petition.
  3. After hearing the motion on notice and the respondents answer the court will either uphold its previous ruling or make a new one. This ruling is only binding till the matrimonial matter before the court is decided and then the issue of custody will be considered again and a final ruling be made at the end of the trial.
  4. Either party to a matrimonial petition can apply for an interlocutory order for custody.

The court will seek to determine what is in the best interest of the child and will consider the child’s age, gender, special needs, living environment, child care arrangements, plans to further the education of the child, financial ability of parent proposing arrangements, and the parents temperament and lifestyle. However, financial privilege alone is not enough determinant of a child’s best interest. (Nwosu vs. Nwosu)

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Interim Child Custody Order Under Matrimonial Causes Act in Nigeria

November 22, 2016

Section 71 of the Matrimonial Causes Act is clear that the ‘courts shall regard the interests of the children as the paramount consideration when awarding custody of children in a matrimonial cause under the MCA.

This is supported by extensive case law.

The Supreme Court in WILLIAMS V WILLIAMS (1987) LPELR-8050 set out the principles on which custody is decided clearly;

“(1) Where in any proceedings before any court the custody or upbringing of a minor is in question, the court in deciding the question shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father in respect of such custody is superior to that of the mother or the claim of the mother is superior to that of the father.

In Nwosu v. Nwosu (2012) 8 NWLR Pt 1301 – the court of appeal further held –

On the right of parents over custody of children of a marriage

The Court held both parties have equal rights in matters of custody of the children. In other words a mother has equal rights with the father over the children. In the instant case the appellant had equal legal interest in the children of the marriage and a right to protect that legal interest.

On Equal Rights of parents over custody of the children of the marriage

In regard to custody or upbringing of a minor a mother shall have the same rights and authority as the law allows the father and the rights and authority of the mother and the father shall be equal and exercisable by either with out the other.

One of the questions that the court of appeal considered was whether or not the appellant (mother) had a right to take the children away from the matrimonial home before a formal order of custody made by a court of competent jurisdiction to determine the issue of custody.

The respondent (father) had asked an Owerri High Court to declare his wife did not have the right to remove the children from their school and relocate then elsewhere without a prior order of the court. The court of first instance sought to compel the mother to return the children till a determination of custody.

The mother appealed the judgement and her appeal was upheld. The court cited the previous Supreme Court ruling in Williams v. Williams (1987) that held both parents have the same right to custody of children pending a custody hearing.

“The law would be an ass indeed if a parent who has inherent legal interest in the children can’t do something to protect the children before the law can take its course” said Ogunwumiju JCA in his lead judgement in Nwosu v. Nwosu.

The court upheld a mother’s right to remove herself and her children from the matrimonial home in the event of  breakdown of the marriage, threat or fear violence and maintaining status quo ante bellum pending matrimonial proceedings.

Counsel for the respondent (father) went on to argue the children of the marriage were of ‘Igbo extraction’ and their father ‘rich and willing to have them around’. The court held that “the reasons given by the learned trial judge in arriving at the conclusion that the appellant (mother) had no legal right to take the children from the matrimonial home were unconstitutional”

“I have no hesitation in arriving at the conclusion that these declarations of the rights of the parents in relation to these children were based on a wrong premise which is that the rights of a very rich father are superior to the rights of the less affluent mother who is from a different tribe. There is discrimination on the basis of tribe, sex and financial means.” – Ogunwumiju JCA

In Tabansi v. Tabansi (2009) 12 NWLR Pt 1155 the lead judgement of the Court of Appeal delivered by Alagao JCA held that

“Except the conduct of the wife is morally reprehensible it is better in an estranged marriage for the child of the marriage, more so if that child is a girl of tender age to be left in the care and custody of the wife.”

A party to matrimonial proceedings can simultaneously file an ex parte motion for interim custody when filing a petition under the MCA under Order 14 Rule 23 (1)(c) which provides that;

23(1) “Where proceedings for ancillary relief have been instituted  seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of the marriage pending the disposal of proceedings , the court may in a case of urgency, hear the proceedings, and make an order in the proceedings, ex parte.”

When filing an ex parte motion (which basically means that the applicant is asking the court to make a ruling without notifying the respondent, the other party in the matter) support it with an affidavit of urgency and also file a motion on notice with the same requests and arguments that will be served on the respondent while the interim order is in effect. And interim order will last for 7 days and within that time the court will want to invite the respondent to come and give his or her side of the story too. If the interim order lapses before the motion on notice is heard or decided the applicant’s lawyer can and should make a further oral application to the court to extend the life of the interim order.

This interim order will provide the legal basis for the applicant to retain custody of the children pending hearing of the motion on notice which will decide custody pending the resolution of the substantive suit which may be for divorce, nullity or judicial separation. The interim order will them be served together with the notice of petition and the motion on notice on the respondent.

Once an order is secured give the applicant the original copy and they can move with the children without fear of the other party taking them away or causing other mischief (like reporting to police they were kidnapped as some parents erroneously do) The applicant can prevent the respondent, the other party in the suit from taking the children forcibly away from him or her and should that party do so they will be in contempt of a court order.

Buhari Admonishes The Judiciary on Their Role in Fight Against Corruption

July 19, 2016

Buhari called on the judiciary to support the fight against the war of corruption yesterday.

Everyone deserves the best defence possible. Even the corrupt. That is the basis of our entire legal system.  Entitled to a legal defence to all accusations. A defence lawyer would not be ethical to do otherwise. And that includes using legal delay tactics.

The judiciary nevertheless has very wide discretionary powers.

However I put the blame squarely on the prosecution, and they are supposed to be the presidents men. A good prosecutor should anticipate and compensate for these delay tactics but frequently deploy their own. It should also hold the judiciary accountable and appeal any decisions that they feel are improperly given.

Our prosecutors lack the modern efficient prosecutorial skills.

An example from my family law practice.

Our client was sued for a divorce. We saw a defect in the form of the petition and asked for the case to be dismissed via a motion. It took 5 adjournments and more than 6 months to get the judgment. The case was dismissed and the petitioner quickly filed a new case in the same court before we could.

On the day we file our response, the petitioner purports to withdraw the case file and file a new one with a motion for substituted service (which we had previously decided to ignore to proceed speedily with the case.) This took another 3 months to sort out. Then we find out he didn’t properly withdraw the first suit, so there are two suits outstanding. Its taking another 3 months.

I see the same kind of unpreparedness in criminal prosecutors. Me and my client just want to get on with it. Its been almost a year. We have not had a hearing on the substantive issue.

I always win my cases because I am over prepared. Never lost a case in Nigeria. When I filed a suit against Shell BP in 2001 the Senior Advocate of Nigeria SAN that came to defend them in the Federal High Court in Umuahia entered appearance without protest. The court workers hail me no be small. They said it had never before happened. Hopefully not so much now.

My rather unscientific assessment is many lawyers are too quick to file a suit without proper research and investigation, do not do enough pre-trial strategy development, and rely too much on rhetoric and connections in the judiciary. After all, they all get paid per appearance. And the overstretched judiciary plays along.

(In 2016 Nigerian judges still record entire trial proceedings in long hand.)

The solution?

  1. Training and capacity building. For the prosecutors and the judges. I wonder what they would say if we asked them the last time they went for training and how/if they apply those skills now.
  2. Upgrade and investment in judiciary infrastructure. This may also require legislation.

Nigerian Case Law on Child Custody

June 11, 2016

I’ve received a lot of enquiries on custody of children in Nigeria and decided to write an update with some decisions made by the courts.

In Nwosu v. Nwosu (2012) 8 NWLR Pt 1301 – the court of appeal held –

On the right of parents over custody of children of a marriage

The Court held both parties have equal rights in matters of custody of the children. In other words a mother has equal rights with the father over the children. In the instant case the appellant had equal legal interest in the children of the marriage and a right to protect that legal interest.

On Equal Rights of parents over custody of the children of the marriage

In regard to custody or upbringing of a minor a mother shall have the same rights and authority as the law allows the father and the rights and authority of the mother and the father shall be equal and exercisable by either with out the other.

One of the questions that the court of appeal considered was whether or not the appellant (mother) had a right to take the children away from the matrimonial home before a formal order of custody made by a court of competent jurisdiction to determine the issue of custody.

The respondent (father) had asked an Owerri High Court to declare his wife did not have the right to remove the children from their school and relocate then elsewhere without a prior order of the court. The court of first instance sought to compel the mother to return the children till a determination of custody.

The mother appealed the judgement and her appeal was upheld. The court cited the previous Supreme Court ruling in Williams v. Williams (1987) that held both parents have the same right to custody of children pending a custody hearing.

“The law would be an ass indeed if a parent who has inherent legal interest in the children can’t do something to protect he children before the law can take its course” said Ogunwumiju JCA in his lead judgement in Nwosu v. Nwosu.

The court upheld a mother’s right to remove herself and her children from the matrimonial home in the event of  breakdown of the marriage, threat or fear violence and maintaining status quo ante bellum pending matrimonial proceedings.

Counsel for the respondent (father) went on to argue the children of the marriage were of ‘Igbo extraction’ and their father ‘rich and willing to have them around’. The court held that “the reasons given by the learned trial judge in arriving at the conclusion that the appellant (mother) had no legal right to take the children from the matrimonial home were unconstitutional”

“I have no hesitation in arriving at the conclusion that these declarations of the rights of the parents in relation to these children were based on a wrong premise which is that the rights of a very rich father are superior to the rights of the less affluent mother who is from a different tribe. There is discrimination on the basis of tribe, sex and financial means.” – Ogunwumiju JCA

In Tabansi v. Tabansi (2009) 12 NWLR Pt 1155 the lead judgement of the Court of Appeal delivered by Alagao JCA held that “Except the conduct of the wife is morally reprehensible it is better in an estranged marriage for the child of the marriage, more so if that child is a girl of tender age to be left in the care and custody of the wife.”

Supreme Court Uphold’s Women’s Inheritance Rights in Igbo Nigeria

April 25, 2016
The Supreme Court on Monday, April 14, voided the Igbo customary law, which denies daughters inheriting their fathers’ estate. The Supreme Court said it was discriminatory and in conflict with the 1999 Constitution of the Federal Republic of Nigeria.
It is a verdict that would have far-reaching effects in addressing a dehumanising tradition, which can no longer be excused in a modern, democratic society such as ours. It is a practice that regarded women as lower than men.
The judgment was given in a family dispute between Gladys Ada Ukeje, who was disinherited from the estate of her deceased father, Lazarus Ogbonna Ukeje. She sued her step-mother, Mrs. Lois Chituru Ukeje and her son, Enyinnaya Lazarus Ukeje.
A Lagos High Court, the Court of Appeal and the Supreme Court all reached the same decision. They confirmed that Gladys was qualified under the laws of Nigeria to inherit her father’s estate. The verdict should settle this matter forever in favour of all daughters in all corners of the country to claim their birthright, which they had been denied.
Justice Bode Rhodes-Vivour, who read the lead judgment stated, “No matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father’s estate. Consequently, the Igbo customary law, which disentitles a female child from partaking in the sharing of her deceased father’s estate, is a breach of Section 42(1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian”.

FREE MARRIAGE ADVICE ON FRIDAY FEBRUARY FOURTEENTH

February 11, 2014

FEBRUARY 14 – Valentine’s Day. Lover’s day, the day of Love. I did the hand made cards, anxious hearts, chocolates and roses when I was young. Now I’m mildly embarrassed at my younger self.  Every time my new hormones reacted to the pheromones and fine genetic features of a male of my specie I thought  myself madly in love.

What is love?  Some people think love is the bond between mother and child, some think its the sexual attraction you feel when you meet some body, some people say that love is a verb – how you act towards some body.  Some people think its spiritual, metaphysical, magical, other worldly, inexplicable. Even the Bible says so, right?

I was as confused as everyone else till I read the January 2008 Time issue on the science of love. My life has never been the same. You can read a pretty good summary here. I wish someone had explained love to me a bit earlier. I can be melodramatic and intense. But I wrote some great poems in those days of ignorance. Find one here.

Some women are waiting for someone to send them a royal Valentine hamper from Fortnum’s or  buy them a trip to Dubai. Some will be happy to get dinner, a card or a plastic rose. Guys are running, avoiding phone calls. Runs babes are sorting the Big Boys from the men. Lots of boys and girls are regularly disappointed on Valentine’s Day.

According to a 2011 report more divorce petitions are filed in the US the day after Valentine’s Day than any other day in the year. In the absence of reliable records I’m going to track my blog stats to see whether I get more search engine hits and enquiries on ‘divorce in Nigeria’ on that day too. Is there more discontent in the air?

I’m a scientific kind of female.

“Events occurring in the brain when we are in love have similarities with mental illness.”

Don’t we all know that feeling?

So which do you think you are feeling? Lust? Attraction? Attachment? Or is it just plain need and fear that’s keeping you in bondage in a loveless abusive relationship? Abuse isn’t only physical. If your spouse constantly creates an atmosphere of rigid control and terror you may be in an abusive relationship. Even if he is providing everything.

Will your relationship or marriage survive Valentine’s Day?  Will that slap you receive, literal or figurative, when you innocently ask what he got you for Valentine’s be the final straw that makes you say ‘enough is enough’.  Will you finally realize that his isolating you from family and friends is abusive behaviour?

I’ll have a tweet meet @MzAgams on February 14th and 15 give some heartfelt and sincere marriage advice to the many broken hearts that may finally decide on Valentine’s Day – the day of love – they deserve better than an abusive spouse.  I’ll answer all your questions about family law, matrimonial causes and child custody issues. Is 8pm good?

 

Joy Osadolor Tells Her Story in Her Own Words, Its an Eye Opener

January 7, 2013

I met Joy begging in Abuja one night with her baby. I asked her why, she doesn’t look like someone that has to beg. Joy is from Benin in South West Nigeria. Her story is so typical it could be the story of every Nigerian woman. Her husband abandoned her with 3 children and a fourth one on the way. Listen to her story. You will cry.

She’s not posh, or educated, she sounds more like a bad Nollywood script sometimes but she is the average Nigerian woman, the uneducated, urban dwelling women who struggle to raise children and keep their husbands by their side each day.

Her determination, her spirit, her persistence and ultimately her courage are what endear her to me and make me want to help her. We’ve taken her to the Ministry of Women Affairs, WRAPA and to MTN Foundation. She does not meet the criteria for any of their programs.

All I’ve done all I can do right now is bring her story and her begging to the internet. So maybe she won’t have to stand on the streets at night (the only time she can come out as she explains) vulnerable to abuse and exploitation, though I doubt she is that easily exploited.

We have helped her open a bank account, the first in her life. If you are moved to help her please make a direct contribution to her. She says she needs money to resume her domestic fuel business and send her children back to school.

If you are in Nigeria you can make a donation to Joy’s account

Account Name: Joy Osadolor
Bank: GTB Plc
Account Number: 0121071317

If you wish to speak to Joy or make a donation from abroad you can email me at lesleyagams@yahoo.com

You can also visit my site for more information about my work in Nigeria http://www.lesleyagams.com